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Vanderbilt Journal of Entertainment & Technology Law

First Page

177

Abstract

Behavioral targeting is an increasingly popular marketing technique that utilizes users’ online activity to personalize advertisements aimed at consumers. However, since personalized advertisements aim to influence individual consumers, behavioral targeting can negatively impact vulnerable users. For instance, it may reinforce harmful behaviors—like showing alcohol advertisements to individuals with alcohol dependency—or worsen mental health struggles, such as prolonging grief by continuing to serve parenting advertisements to those mourning the loss of a child. These practices can perpetuate harmful behaviors, such as relapse or heightened psychological distress, and contribute to long-term health problems, such as addiction or other mental health problems, creating a significant public health burden. While the Health Insurance Portability and Accountability Act (HIPAA) already protects health data classified as protected health information within covered entities, it does not apply to most consumer health applications. Although other federal and state regulators—such as the Federal Trade Commission (FTC)—are starting to act on behavioral targeting, users of popular health applications may still be unaware of how voluntarily shared health data can be used to influence their health decisions and outcomes. This Note proposes the establishment of state regulatory agencies to enforce stricter informed consent rules, similar to those used in human subjects research, in order to protect vulnerable health app users while also preserving the marketing efficiency created by online behavior targeting techniques. These rules would require clear and accessible disclosures about how data is used, modeled after the stringent consent requirements in human subjects research, and ensure that consumers understand the potential risks to their health.

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